Unathi Mcbold Mabuza
LEV3701
64762599
Question 1
It is clear that marital privilege is an ancient monolith that South Africa has inherited
from its colonial history and has to be reformed in order to find its place in a post-
constitutional dispensation. This position is justified with the argument that the privilege
exceeds its rationale, hampers the administration of justice by denying courts access to
relevant information, and is at odds with the right to equality in terms of the Constitution.
It is common cause that those in support of the privilege rely on the argument that
marriage is sacrosanct and therefore is deserving of protection in order to preserve
marital harmony. This therefore necessitates a robust approach to reform marital
privilege, in order to achieve an equitable balance between ensuring the privilege is
constitutionally sound and that people in unions still can confide in each other.
Question 2
Real evidence refers to physical objects or things brought before the court so that it can
view for itself. Examples of real evidence could include a knife, a garment or fingerprint,
or even a person. They are no formal requirements for the handing in of objects such as
weapons or prohibited objects such as dagga but handing in is often accompanied by
oral evidence. Someone has to identify the object and place it in context. I do not agree
with the prosecutor to use cell phone as evidence because cell phone evidence is not
used as physical evidence in court cases but rather as circumstantial evidence, mobile
devices are popular platforms for various applications, they can offer imperative
evidence in forensic investigation. These devices often serve as a source of digital
evidence in crime and contain personal information about an individual, such as
photographs, password and other useful data.
Question 3
The burden of proof lies upon the person who has to prove a fact and the burden
remains constant which never shifts while on other hand onus shifts from one to
another[2]., Addagada Ragavamma & Anr v. Addagada Chenchaamma & Anr. Supreme
, Court held that there is an essential distinction between the burden of proof and onus of
proof, the first one is the burden to prove the main contention of the party requesting the
action of the court, while the second one is the burden to produce actual evidence. The
term burden of proof has two different meaning one is Burden of proof establish a case
and the other burden to adduce evidence which is also known as the onus of proof, thus
we can say the onus is nothing but one part of Burden of proof which is unstable and
has a feature of shifting, in addition, the burden to proof is not same in the civil and
criminal cases, this deals differently in both the cases and the accused can be
considered guilty when the facts have been proved in the court of law.
Question 4
Corroboration is meant other evidence which supports the evidence of the complainant,
and which renders the evidence of the accused less probable, on the issues in dispute.”
Repetition of a story cannot furnish corroboration. It can, at most, prove consistency —
as is the case, for example, where a previous consistent statement of a witness is
admitted in order to rebut an allegation of recent fabrication. But proof of consistency is
not the equivalent of corroboration. In Director of Public Prosecutions v Kilbourne the
rationale of the rule against self-corroboration was explained as follows: “There is
nothing technical in the idea of corroboration. When in the ordinary affairs of life one is
doubtful whether or not to believe a particular statement one naturally looks to see
whether it fits in with other statements or circumstances relating to the particular matter;
the better it fits in, the more one is inclined to believe it. The doubted statement is
corroborated to a greater or lesser extent by the other statements or circumstances with
which it fits in. In ordinary life we should be, and in law we are required to be, careful in
applying this idea. We must be astute to see that the apparently corroborative statement
is truly independent of the doubted statement. If there is any real chance that there has
been collusion between the makers of the two statements we should not accept them as
corroborative. And the law says that a witness cannot corroborate himself. In ordinary
affairs we are often influenced by the fact that the maker of the doubted statement has
consistently said the same thing ever since the event described happened. But the
justification for the legal view must, I think, be that generally it would be too dangerous
to take this into account and therefore it is best to have a universal rule.
Question 5
During the adjudication of sexual offences against children, the cautionary rules are
used. Cautionary rules are evidentiary rules of practice that require presiding officers to
exercise caution when they accept the evidence of certain categories of witnesses. The
LEV3701
64762599
Question 1
It is clear that marital privilege is an ancient monolith that South Africa has inherited
from its colonial history and has to be reformed in order to find its place in a post-
constitutional dispensation. This position is justified with the argument that the privilege
exceeds its rationale, hampers the administration of justice by denying courts access to
relevant information, and is at odds with the right to equality in terms of the Constitution.
It is common cause that those in support of the privilege rely on the argument that
marriage is sacrosanct and therefore is deserving of protection in order to preserve
marital harmony. This therefore necessitates a robust approach to reform marital
privilege, in order to achieve an equitable balance between ensuring the privilege is
constitutionally sound and that people in unions still can confide in each other.
Question 2
Real evidence refers to physical objects or things brought before the court so that it can
view for itself. Examples of real evidence could include a knife, a garment or fingerprint,
or even a person. They are no formal requirements for the handing in of objects such as
weapons or prohibited objects such as dagga but handing in is often accompanied by
oral evidence. Someone has to identify the object and place it in context. I do not agree
with the prosecutor to use cell phone as evidence because cell phone evidence is not
used as physical evidence in court cases but rather as circumstantial evidence, mobile
devices are popular platforms for various applications, they can offer imperative
evidence in forensic investigation. These devices often serve as a source of digital
evidence in crime and contain personal information about an individual, such as
photographs, password and other useful data.
Question 3
The burden of proof lies upon the person who has to prove a fact and the burden
remains constant which never shifts while on other hand onus shifts from one to
another[2]., Addagada Ragavamma & Anr v. Addagada Chenchaamma & Anr. Supreme
, Court held that there is an essential distinction between the burden of proof and onus of
proof, the first one is the burden to prove the main contention of the party requesting the
action of the court, while the second one is the burden to produce actual evidence. The
term burden of proof has two different meaning one is Burden of proof establish a case
and the other burden to adduce evidence which is also known as the onus of proof, thus
we can say the onus is nothing but one part of Burden of proof which is unstable and
has a feature of shifting, in addition, the burden to proof is not same in the civil and
criminal cases, this deals differently in both the cases and the accused can be
considered guilty when the facts have been proved in the court of law.
Question 4
Corroboration is meant other evidence which supports the evidence of the complainant,
and which renders the evidence of the accused less probable, on the issues in dispute.”
Repetition of a story cannot furnish corroboration. It can, at most, prove consistency —
as is the case, for example, where a previous consistent statement of a witness is
admitted in order to rebut an allegation of recent fabrication. But proof of consistency is
not the equivalent of corroboration. In Director of Public Prosecutions v Kilbourne the
rationale of the rule against self-corroboration was explained as follows: “There is
nothing technical in the idea of corroboration. When in the ordinary affairs of life one is
doubtful whether or not to believe a particular statement one naturally looks to see
whether it fits in with other statements or circumstances relating to the particular matter;
the better it fits in, the more one is inclined to believe it. The doubted statement is
corroborated to a greater or lesser extent by the other statements or circumstances with
which it fits in. In ordinary life we should be, and in law we are required to be, careful in
applying this idea. We must be astute to see that the apparently corroborative statement
is truly independent of the doubted statement. If there is any real chance that there has
been collusion between the makers of the two statements we should not accept them as
corroborative. And the law says that a witness cannot corroborate himself. In ordinary
affairs we are often influenced by the fact that the maker of the doubted statement has
consistently said the same thing ever since the event described happened. But the
justification for the legal view must, I think, be that generally it would be too dangerous
to take this into account and therefore it is best to have a universal rule.
Question 5
During the adjudication of sexual offences against children, the cautionary rules are
used. Cautionary rules are evidentiary rules of practice that require presiding officers to
exercise caution when they accept the evidence of certain categories of witnesses. The
